POSITIVE LAW CODIFICATION

Positive law codification by the Office of the Law Revision Counsel is the process of preparing and enacting a codification bill to restate existing law as a positive law title of the United States Code. The restatement conforms to the policy, intent, and purpose of Congress in the original enactments, but the organizational structure of the law is improved, obsolete provisions are eliminated, ambiguous provisions are clarified, inconsistent provisions are resolved, and technical errors are corrected.

The Term "Positive Law"

The term "positive law'' has a long-established meaning in legal philosophy but has a narrower meaning when referring to titles of the Code.
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Positive Law Titles vs. Non-Positive Law Titles

The Code is divided into titles according to subject matter. Some are called positive law titles and the rest are called non-positive law titles.

A positive law title of the Code is itself a Federal statute. A non-positive law title of the Code is an editorial compilation of Federal statutes. For example, Title 10, Armed Forces, is a positive law title because the title itself has been enacted by Congress. For the enacting provision of Title 10, see
first section of the Act of August 10, 1956, ch. 1041 (70A Stat. 1).
By contrast, Title 42, The Public Health and Welfare, is a non-positive law title. Title 42 is comprised of many individually enacted Federal statutes––such as the Public Health Service Act and the Social Security Act––that have been editorially compiled and organized into the title, but the title itself has not been enacted.

The distinction is legally significant. Non-positive law titles are prima facie evidence of the law, but positive law titles constitute legal evidence of the law in all Federal and State courts (1 U.S.C. 204).

Having, on one hand, non-positive law titles as prima facie evidence of the law, and on the other hand, positive law titles as legal evidence of the law, means that both types of titles contain statutory text that can be presented to a Federal or State court as evidence of the wording of the law. The difference between "prima facie" and "legal" is a matter of authoritativeness.

Statutory text appearing in a non-positive law title may be rebutted by showing that the wording in the underlying statute is different. Typically, statutory text appearing in the Statutes at Large is presented as proof of the words in the underlying statute. The text of the law appearing in the Statutes at Large prevails over the text of the law appearing in a non-positive law title.

Statutory text appearing in a positive law title is the text of the statute and is presumably identical to the statutory text appearing in the Statutes at Large. Because a positive law title is enacted as a whole by Congress, and the original enactments are repealed, statutory text appearing in a positive law title has Congress's "authoritative imprimatur" with respect to the wording of the statute. See Washington-Dulles Transp., Ltd. v. Metro. Wash. Airports Auth., 263 F.3d 371, 378 n.2 (4th Cir. Va. 2001); see generally
Norman J. Singer & J.D. Shamble Singer, Statutes and Statutory Construction, § 36A.10, (7th ed. 2009). Recourse to other sources such as the Statutes at Large is unnecessary when proving the wording of the statute unless proving an unlikely technical error in the publication process.

Non-positive law titles and positive law titles both contain laws, but the two types of titles result from different processes. A non-positive law title contains numerous separately enacted statutes that have been editorially arranged into the title by the editors of the Code. The organization, structure, and designations in the non-positive law title necessarily differ from those of the incorporated statutes, and there are certain technical, although non-substantive, changes made to the text for purposes of inclusion in the Code. A positive law title is basically one law enacted by Congress in the form of a title of the Code. The organization, structure, designations, and text are exactly as enacted by Congress. In the case of a positive law title prepared by the Office of the Law Revision Counsel, the title is enacted as a restatement of existing statutes that were previously contained in one or more of the non-positive law titles. In such a restatement, the meaning and effect of the laws remain unchanged; only the text is repealed and restated. In preparing a codification bill, the Office uses the utmost caution to ensure that the restatement conforms to the understood policy, intent, and purpose of Congress in the original enactments.

Importance of Positive Law Codification

The Code is useful for researching and proving the general and permanent laws of the United States. Positive law codification improves the usefulness of the Code in a number of significant ways:

The original 1926 Code fit into a single volume and reflected the focus and size of the body of law then in effect. Since that time, the Code has become a multivolume compilation because of the addition of a great deal of new laws. Many of those new laws have been shoehorned into the original 50 titles, the subject matters of which are sometimes unsuited as descriptive titles for the new laws. Closely related laws that were enacted decades apart may appear in different volumes of the Code. Chapters based on statutes that have been amended many times may have cumbersome numbering schemes with section numbers such as 16 U.S.C. 460zzz-7 and 42 U.S.C. 300ff-111. Positive law codification provides an opportunity to greatly improve the organization of existing law and create a flexible framework that can accommodate new legislation in the future.

The non-positive law titles contain various laws enacted far apart in time during a span of more than a century. Laws in non-positive law titles reflect drafting styles and word choices in use at the time of enactment. Positive law codification provides an opportunity to restate the laws using a consistent drafting style and consistent word choices.

Certain provisions are written with expiration dates so that non-positive law titles contain many obsolete provisions. Positive law codification provides an opportunity to eliminate those provisions.

A non-positive law title of the Code is prima facie evidence of the statutes it contains; it can be rebutted by showing that the wording in an underlying statute is different. A positive law title constitutes legal evidence of the law; it is considered to be more authoritative in Federal and State courts.

When a provision of a statute is included in a non-positive law title, certain technical changes are made in the wording and organization to integrate the provision into the Code. See the
Detailed Guide to the Code. These changes enable the reader to navigate more easily within the Code, but they can make navigating between the statutes and the Code more complicated, particularly when amendments and cross references are involved. With positive law codification, the organization and wording of the Code are exactly as enacted by statute, so there are no editorial changes to complicate the transition between statute and Code.

Authority for Positive Law Codification

Section 205(c) of House Resolution No. 988, 93d Congress, as enacted into law by Public Law 93-554 (2 U.S.C. 285b), provides the mandate for positive law codification. Under that section, one of the functions of the Office of the Law Revision Counsel is "[t]o prepare, and submit to the Committee on the Judiciary one title at a time, a complete compilation, restatement, and revision of the general and permanent laws of the United States which conforms to the understood policy, intent, and purpose of the Congress in the original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections both of substance and of form, separately stated, with a view to the enactment of each title as positive law."

Process of Positive Law Codification

In drafting a codification bill, the Office of the Law Revision Counsel carefully considers the state of existing laws on a subject matter and aims for the improvement of those laws without changing their meaning or effect. To achieve this result, the Office actively seeks input from Federal agencies, congressional committees, experts in the area of law being codified, and other interested persons. That input is essential in ensuring that the laws are restated correctly and in identifying obsolete, ambiguous, or inconsistent provisions and reaching a consensus on how those provisions should be handled. Because much research, consultations, and consensus-building are essential in correctly restating the laws, the process of positive law codification is inherently time consuming.

An explanation of the bill is prepared along with the codification bill. The explanation contains the following:

Disposition table––The disposition table lists each Code section affected by the bill (referred to as "former sections"). For each former section, a disposition is provided. If the former section is restated as a section of the new positive law title, the new section number is given. If the former section is repealed, or not repealed but omitted, an explanation is given.
Example

Section-by-section analysis––The section-by-section analysis contains source credit tables and revision notes for each section of the new title:

In a source credit table for each section of a new title, the first column provides the new section number (which is sometimes broken down into smaller units), the second column provides the former section number (broken down into smaller units, if applicable), and the third column provides the Public Law source credit. If the Office of the Law Revision Counsel believes that it would be helpful, the third column may provide all of the credits including the base law and each provision of law that has amended the base law. Otherwise, the third column may provide the credit only for the base law, in which case, the complete source credits will be provided in a single source credit table following the section-by-section analysis.
Examples

A source credit table following the section-by-section analysis provides the source credits (that is, citations to each law by which a section was enacted or amended) for each section of the base law, any part of which is being restated in the new title.
Example

For an explanation of source credit information in the Code (including concepts such as base law), which is similar to source credit information in a source credit table, see the
Detailed Guide to the Code.

After the codification bill and explanation are finalized, they are submitted to the Committee on the Judiciary of the House of Representatives for introduction of the bill. Once the bill is introduced, a formal review and comment period begins. At the conclusion of the comment period, an amendment that reflects corrections and comments is prepared by the Office of the Law Revision Counsel and transmitted to the Committee on the Judiciary for Committee action. The explanation of the bill is converted into a report that accompanies the bill. Typically, the bill is passed by the House of Representatives under suspension of the rules and by the Senate by unanimous consent.

Once enacted, the new title is a positive law title of the Code. The disposition table, source credit tables, revision notes, and other relevant information from the report that accompanied the codification bill are included with the title in the Code.

For an example of a codification bill enacted as a Public Law, see Public Law 111-314 (available here) which enacted
Title 51, National and Commercial Space Programs.

There are currently 27 positive law titles in the Code. Those titles are identified with an asterisk on the
Search & Browse page.

Links to Current and Recently Completed Positive Law Codification Projects